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Court Looks at Possible Illegal Search

A police officer was on patrol one evening when he received a call regarding a disturbance at a certain street. He was advised that an occupant of a tan Honda Accord, with the license plate no., was holding a gun out of the window; a possible gun crime. However, no description was given regarding the occupants of the vehicle.

A New York DWI Lawyer said he aforesaid street was a known gang and drug location where a gang known as the “MS-13” displayed their “tags”, symbols on buildings at that location. The police officer on patrol had previously responded to the same street and was familiar with the area.

The police officer responded to the call and upon arrival at the street he observed four to five individuals next to the tan Honda Accord with the same license plate as reported, some of whom were wearing the blue bandana gang colors of “MS-13”, who were believed to be the occupants of the vehicle.

Thereafter, the officer approached the individuals with back-up and asked if anyone owned the tan Honda Accord. A New York DWI Lawyer said when one of the individuals at the scene responded that they were the owner of the tan Honda Accord, the officer proceeded to put everyone up against the wall and performed a “pat-down” for safety and felt a gravity knife in the defendant’s pocket, leading to the defendant’s arrest.

Defendant is charged with one (1) count of Penal Law; criminal possession of a weapon in the fourth degree, a class A misdemeanor.

Upon stipulation of both parties, the Court conducted a Dunaway/Mapp hearing.

The police officer was called upon to testify. The defendant did not call any witnesses. It must be noted that the aforesaid police officer’s credibility is without question. He is currently a fourteen (14) year veteran with the Nassau County Police Department and prior to that time he served six (6) years with the New York City Police Department. He had training in both the New York City Police Academy and the Nassau County Police Academy and has assisted in approximately fifty (50) arrests for dangerous weapons.

Issue: Is the gravity knife admissible in evidence?

As with most police-citizen street encounters, the Court must weigh the reasonableness of the governments interest in trying to provide a safe and crime free society against the encroachment involved with respect to an individual’s Fourth Amendment rights to privacy and security.

A Nassau County DWI Lawyer said in an an effort to balance these, sometimes competing interests, the Court of Appeals in one case provided four-tiered analytical framework, that escalates, as attendant factors increase in weight and competence of permissible police intrusion that does not run afoul of the Fourth Amendment, which are: Level One of permissible police intrusion occurs where the police request information from an individual when there is some objective credible reason for that interference not necessarily indicative of criminal activity; Level Two of permissible police intrusion of an individual occurs when there is a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure; Level Three of permissible police intrusion occurs where the police have a reasonable suspicion that a particular person has committed or is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person and if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed” he may frisk the detainee; Level Four, a police officer may arrest and take into custody a person when he has probable cause to believe that person has committed a crime, or offense in his presence.

Simply put, the four levels of permissible police activity start with Level One, the least intrusive, and gradually escalate depending on the circumstances to Level Four, the most intrusive.

Here, the police officer arrived at the location and saw the vehicle as described by the call. Thereupon, he had a founded suspicion that criminal activity was afoot and therefore engaged in a Level Two inquiry by simply asking the individuals standing next to the vehicle in question “who owned the car”. When one of the men in the group of four to five responded it was their car, the officer was justified in performing a pat-down of the defendants for the officers safety based upon the fact that the radio transmission he received a few minutes earlier indicate one of the occupants of the car had a gun. Therefore, under a Level Three inquiry, the police were justified in performing a “pat-down” of the defendant. In addition to the foregoing, the Court is also mindful that the police officer testified that such particular location was known as a gang/drug location and he also observed the MS-13 gang symbols on the buildings as he approached the individuals.

While a gang affiliation or a high crime area does not, by itself, provide a basis to justify a stop-and-frisk, a police officer directed to a location by a general radio call cannot reasonably be instructed to close his eyes to reality; neither the officer nor justice should be that blind. The officer was rightfully and dutifully on the scene and could not ignore possible indications of criminality; there is not any logical reason for him to reject the natural mental connection between newly encountered facts and the substance of the radio message.

When the police officer was performing his “pat-down” of the defendant he felt a gravity knife which he recognized from his training and twenty (20) years of experience as a police officer and therefore the Level Three encounter was elevated to a Level Four encounter whereupon the defendant was arrested.

A similar case is brought to the attention of the court. The arresting officer received a radio transmission regarding a knife-point robbery at an Exxon station involving three black males. Approximately fifteen (15) minutes after receiving the transmission, the officer observed, in the vicinity of the scene of the crime, three black males, two of whom wore clothing matching the description furnished in the transmission. When the officer called out to the defendant and his companions, requesting them to stop, they changed direction and increased their pace. The officer then ordered the suspects to stop. The court finds that the defendant’s initial detention was supported by reasonable suspicion founded on articulable facts. Moreover, once the officer observed a bulge in the defendant’s pocket, he is justified in conducting a limited pat-down search to ascertain whether the defendant was armed with a weapon. Probable cause to arrest the defendant existed upon the discovery of a knife in his pocket. Accordingly, the officer was entitled to effectuate a warrantless arrest since he possessed reasonable cause to believe that defendant was one of the perpetrators of the robbery.

In conclusion, it would be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety. Considering the totality of the circumstances, including the radio call and the information acquired by observation at the scene, there was an ample measure of reasonable suspicion necessary to justify the limited intrusion which produced the gravity knife.

Accordingly, the gravity knife is admissible in evidence.

For a free consultation, contact Stephen Bilkis & Associates. We are equipped with the best and finest lawyers. Your best interest is our priority. Speak with our Nassau County Arrest Attorneys with regard to arrest disputes. Also, you may call upon the assistance of our Nassau County Criminal Attorneys and plan a strong defense.

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